Know Your Supreme Court

By Linda Greenhouse, the Knight Distinguished Journalist-in-Residence, a Senior Research Scholar in Law and Joseph Goldstein Lecturer in Law at Yale Law School. Greenhouse, a member of the American Constitution Society's Board of Directors, will be signing copies of her new book at the 2012 ACS National Convention.

Has there been a time recently when public understanding of the Supreme Court was so important – and so lacking?

In a Pew poll two summers ago, only 28 percent of the respondents could identify John Roberts as chief justice (a position he had then held for nearly five years) from among a list of four names. The other options, all of which some people selected, were Thurgood Marshall, who had died 17 years earlier; John Paul Stevens, who was in the news for retiring; and Harry Reid, the Senate majority leader. Just imagine what people don’t know about how the court sets its agenda or construes statutes, or about the powers of the chief justice or the debate over constitutional interpretation.

With a court of conservative activists substituting their policy judgments for those of Congress; using the First Amendment as a deregulatory tool; and proposing to unsettle long-settled understandings of affirmative action and voting rights, it’s essential that we become a nation of knowledgeable, or at least better-informed, court-watchers. That’s the big ambition of my new little book – and I use the word “little” as an accurate physical description (7 by 4.5 inches in dimension, 117 pages of text), not as false modesty.

When an editor from Oxford University Press called to ask whether I would write a “very short introduction” to the Supreme Court, I was unfamiliar with Oxford’s Very Short Introduction series (VSI’s, as they are known in the trade.) Then I realized I had seen bookstore displays, often near the cash register, of volumes from the series, which began in 1995 and now covers more than 300 topics. Subjects include almost any you might think of (ancient Greece, Mormonism, quantum theory) and many that you probably wouldn’t (cryptography, dreaming, and – yes – “nothing”). The target audience consists of intelligent, curious people throughout the English-speaking world. In other words, this is not the Supreme Court for dummies.

As I worked on the book, the audience I had in mind was basically the audience I internalized during nearly 30 years of covering the Supreme Court for The New York Times: smart people who came to the subject willingly and didn’t have to be pandered to or spoon fed. My goal was to demystify the Supreme Court for these readers, to arm them with the knowledge they need to observe the court on an ongoing basis. If students – high school, college, or law school – happen upon the book, so much the better. I was thrilled when a class of A.P. United States history students from a New York City public high school showed up at a book talk I gave at Cooper Union in Manhattan.

Abstractions about the Supreme Court don’t mean very much, so I tried throughout the book to illustrate every point with concrete examples, most of them quite recent: the Americans With Disabilities Act as an example of the challenge of construing a very broadly worded statute (what’s a disability?), the Lilly Ledbetter saga as an example of Congress responding to an instance of tone-deaf statutory interpretation, the Guantanamo cases as an example of the constantly shifting dynamic of the separation of powers. I wrote somewhat extensively (if any subject in a book this diminutive can be said to be treated extensively) about the battle over Robert Bork’s nomination in 1987 – when today’s law students were infants, if that. I wrote about oral argument, the Supreme Court bar, and the current debate over the citation of foreign law. It’s clearly not a book of history, but there’s enough history to provide context and to show the surprising extent to which the Supreme Court, starting out with an ill-defined mandate and without a home of its own for a century and a half, has been the author of its own story. For readers whose appetite is whetted, I included five pages of suggestions for further reading.

I finished the manuscript last summer, so there is nothing about the Affordable Care Act and its fate. My hope is that when the ruling comes down, readers of this book will be able to move beyond the sound bites and understand the decision for what it is, for better or worse.